ANTONY VARKEY Vs. SOUTH INDIAN BANK LTD

JUDGEMENT

(1.) Revision petitioners are the defendants in O.S. 193 of 1989 of the Principal Sub Court, Kottayam. They filed I.A 9 of 1990 under O.9 R.13 C.P.C. to set aside the decree passed against them. The Sub Judge allowed the petition on deposit of Rs.5,00,000/- in court towards the decree amount on or before 14-9-1990.

(2.) Contention of the revision petitioners is that the aforesaid condition is extremely onerous and harsh and it would amount to stifling their defence in the suit. Learned counsel for the respondent submitted that the Court below was well within its jurisdiction to pass the order and merely because the aforesaid amount was ordered to be deposited towards the decree amount it cannot be held that it suffers from any infirmity.

(3.) O.9 R.13 enables the Court to set aside ex parte decree. The order provides that in any case in which a decree is passed ex parte against the defendant it is open to the defendant to make an application to the Court which passed the decree to set aside the order if he satisfies the Court that the "summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called on for hearing. The Court is given power to set aside the decree upon such terms as to payment of costs in the Court or otherwise as it thinks fit. In view of the above specific provision it cannot be held that the Court is powerless to give a direction to deposit the decree amount in part or full before an ex parte decree is set aside. O.9 R.13 bestows the discretion to the Court to set aside the decree on imposing terms and conditions. The words "upon such terms as to costs, payment into Court or otherwise as it thinks fit" give ample latitude to the court while setting aside the ex parte decree.